- (1.) These appeals arise out of an execution proceeding, and the main point to be decided in them is what is the effect of certain provisions of the Madras Agriculturists' Relief Act (Madras Act 4 of 1938, which will hereinafter be referred to as "the Madras Act-"), on the rights of the parties. How this point arises will be clear from a brief statement of the facts of the case.
(2.) It appears that in 1908, one Veeresalingam, the husband of the first respondent, borrowed a sum of Rs. 9,000/- from one Sitharamayye and executed a mortgage bond in his favour. Subsequently a suit was instituted by the mortgagee to enforce the mortgage and a final decree in that suit was passed on 19-8-1926. Thereafter, on 28-10-1931, the decree-holder applied for the execution of the decree by the sale of the mortgaged property. In 1933, the decree-holder transferred tile decree to one Sobhanadri, after whose death his son, the appellant before us, was brought on the record as his legal representative in the execution proceedings. Several years before the assignment of the decree, Veeresalingam, the defendant, was therefore brought on the record as his legal re presentative. On 6-7-1935, two items of property were sold in execution of the decree and purchased by the decree-holder, these being: (1) a village called Tedlam in West Godavari District; and (2) 4 acres and 64 cents of land in Madepalli village. The first property was sold for Rs. 21,000/- and the second for Rs. 1,025/-. As, however, the amount due under the decree was only about Rs. 17,860/- and odd, the sale of the second property was subsequently set aside and the decree-holder deposited into court the excess amount of about Rs. 3,000/- and odd after setting off the decretal amount against the price of the first Item of property. On 5-8-1935, the first respondent filed an application under O. 21, R. 90 and S. 47, Civil P. C. to set aside the sale held In July, 1935, alleging certain irregularities in the conduct of the sale. That application was after several years heard by the Subordinate Judge of Ellore who by his order dated 6-3-1943, dismissed it and directed the sale of the first property to be confirmed and full satisfaction of the decree to be entered. After about 12 days, i.e. on 18-3-1943, the first respondent and the second respondent, who had been adopted by the former on 12-3-1936, under the will of her husband and was subsequently brought on record, filed an application under S. 19 of the Madras Act praying for certain reliefs under that Act. This application was dismissed on 22-3-1943. Subsequently, two appeals were filed on behalf of the respondents (who will hereinafter be sometimes referred to as judgment-debtors). one against the order refusing to set aside the sale under O. 21, R. 90, Civil P. C., and the other against the order dismissing the application under the Madras Act. These appeals were heard together by two learned Judges of the Madras High Court and they took the view that the judgment-debtors' application under the Madras Act was maintainable notwithstanding the fact that the sale had been confirmed and full satisfaction of the decree recorded, and remitted the case to the trial court for a finding on the following questions, namely: (1) whether the applicants were agriculturists; and (2) if so, what would be the result of applying the provisions of Madras Act 4 of 1938 to the decretal debt against them So far as regards the judgment-debtors' appeal against the order dismissing their application under Order 21, Rule 90, the learned judges were inclined to agree with the trial court that the sale should stand but declined to pass final orders in the appeal on the ground that "it would seriously prejudice the judgment-debtors in the connected application for relief under S. 19 of the Madras Act 4 of 1938."
(3.) The Subordinate Judge answered the questions referred to him by the High Court on remand, as follows : (1) The judgment-debtors were not agriculturists and were not therefore entitled to the benefits of the Madras Act; and (2) If they were agriculturists, they were not liable to pay anything under the decree, as, in view of the provisions of the Act, the debt stood discharged on the date of sale. When however the matter came up before the learned Judges of the High Court, they reversed the first finding of the trial court and held that the judgment-debtors were agriculturists within the meaning of the Act, and that the debt stood discharged in view of S. 8 (2) of the Act. At the same time, they held that the sale was not liable to be set aside, and in this view dismissed one of the appeals and allowed the other. Then followed certain proceedings to which it would have been unnecessary to refer but for the fact that the judgment-debtors have attempted to rely on them in support of one of their preliminary objections to the maintainability of these appeals.;